When the Eighteenth Amendment took effect on
January 17, 1920, most observers assumed that liquor would quickly disappear from the
American scene. The possibility that a constitutional mandate would be ignored simply did
not occur to them. "Confidence in the law to achieve a moral revolution was
unbounded," one scholar of rural America has ' pointed out, explaining that
"this was, after all, no mere statute, it was the Constitution."' The assistant
commissioner of the Internal Revenue Service, the agency charged with overseeing the new
federal law, predicted that it would take six years to make the nation absolutely dry but
that prohibition would be generally effective from the outset. Existing state and federal
law enforcement agencies were expected to be able to police the new law. Initial plans
called for only a modest special enforcement program, its attention directed to large
cities where the principal resistance was anticipated. I Wayne Wheeler of the Anti-Saloon
League confidently anticipated that national prohibition would be respected, and estimated
that an annual federal appropriation of five million dollars would be ample to implement
it. The popular evangelist Billy Sunday replaced his prohibition sermon with one entitled
"Crooks, Corkscrews, Bootleggers, and Whiskey Politicians-They Shall Not Pass."'
Wartime prohibition, which only banned further manufacture of distilled spirits and strong
beer (with an alcohol content exceeding 2.75 percent) had already significantly reduced
consumption.' Few questioned the Volstead Act's capacity to eliminate intoxicants
altogether. Americans accustomed to a society in which observation and pressure from other
members of a community encouraged a high degree of conformity did not foresee that there
would be difficulties in obtaining compliance with the law. They did not realize that the
law would be resented and resisted by sizable elements in an increasingly urban and
heterogeneous society where restraints on the individual were becoming far less
compelling.'

Within a few months it became apparent that not
every American felt obliged to stop drinking the moment constitutional prohibition began.
In response to consumer demand, a variety of sources provided at first a trickle and later
a growing torrent of forbidden beverages.' Physicians could legally prescribe
"medicinal" spirits or beer for their patients, and before prohibition was six
months old, more than fifteen thousand, along with over fifty seven thousand pharmacists,
obtained licenses to dispense liquor. Grape juice or concentrates could be legitimately
shipped and sold and, if the individual purchaser chose, allowed to ferment. Distributors
learned to attach "warning" labels, reporting that United States Department of
Agriculture tests had determined that, for instance, if permitted to sit for sixty days
the juice would turn into wine of twelve percent alcohol content. The quadrupled output
and rising prices of the California grape industry during the decade showed that many
people took such warnings to heart.'

Other methods of obtaining alcoholic beverages
were more devious. Some "near-beer," which was legally produced by manufacturing
genuine beer, then removing the three to five percent alcohol in excess of the approved
one-half percent, was diverted to consumers before the alcohol was removed. In other
instances, following government inspection, alcohol was reinjected into near-beer, making
what was often called "needle beer." Vast amounts of alcohol produced for
industrial purposes were diverted, watered down, and flavored for beverage purposes. To
discourage this practice, the government directed that industrial alcohol be rendered
unfit to drink by the addition of denaturants. Bootleggers did not always bother to remove
such poisons, which cost some unsuspecting customers their eyesight or their lives.

Theft of perhaps twenty million gallons of good
preprohibition liquor from bonded warehouses in the course of the decade, as well as an
undeterminable amount of home brewing and distilling, provided more palatable and
dependable beverages.- By 1930 illegal stills provided the main supply of liquor,
generally a high quality product. The best liquor available was that smuggled in from
Canada and from ships anchored on "Rum Row" in the Atlantic beyond the
twelve-mile limit of United States jurisdiction. By the late 1920s, one million gallons of
Canadian liquor per year, eighty percent of that nation's greatly expanded output, made
its way into the-United States. British shipment of liquor to islands which provisioned
Rum Row increased dramatically. Exports to the Bahamas, for example, went from 944 gallons
in 1918 to 386,000 gallons in 1922. The tiny French islands of St. Pierre and Miguelon off
the coast of Newfoundland imported 118,600 gallons of British liquor in 1922, "quite
a respectable quantity," a British official observed, "for an island population
of 6,000."' Bootlegging, the illicit commercial system for distributing liquor,
solved most problems of bringing together supply and demand. Government appeared unable -
some claimed even unwilling - to halt a rising flood of intoxicants. Therefore, many
observers at the time, and increasing numbers since the law's repeal, assumed that
prohibition simply did not work.

Did national prohibition fail? Answering this
question is a bit like deciding whether a glass is half-full or half-empty. One's response
depends on certain value judgments regarding the relative importance of the degree of
progress toward an objective versus the extent to which the advance falls short of the
goal. Views differ as to what constitutes success or failure. National prohibition
substantially reduced, but did not altogether eliminate, the use of alcoholic beverages.
Thus, depending on their own values, observers at the time and later drew differing
conclusions regarding the dry law's success. In order to understand both positive and
negative reactions to national prohibition, it is important to examine the manner in which
the law functioned, the extent to which it reduced the consumption of intoxicants, and the
image of the law's operation derived by the contemporary public. What people thought was
happening with national prohibition proved at least as important as what actually took
place.

Laws, it is important to remember, seldom enjoy
absolute compliance, and indeed a society expects a certain rate of violation of its
behavioral codes. Communities create law enforcement agencies in anticipation that laws
occasionally will be disregarded. The degree of coercive enforcement varies among
societies, just as does the law-making authority. Yet to a considerable degree in every
society public acceptance and voluntary compliance determine a law's success. Coercive
power has limits; if enough dissenters refuse to obey a law, it cannot be imposed upon
them. The acceptable limits of coercion vary, of course, from one society to another and
one law to another. In the United States, where hostility to official coercion has a long
history, a fairly high degree of voluntary compliance is usually regarded as necessary to
a law's success. Thus the question of whether prohibition succeeded or failed involves
more than simply determining whether more people obeyed than violated the law. It requires
assessing the law's effect in relation to expectations, society's view of an acceptable
level of violation, and the tolerable limits of enforcement to produce compliance.

The Volstead Act specified how the constitutional
ban on "intoxicating liquors ... for beverage purposes" was to be enforced.9
What the statute did not say had perhaps the greatest importance. While the law barred
manufacture, transport, sale, import, or export of intoxicants, it did not specifically
make their purchase or use a crime. This allowed continued possession of intoxicants
obtained prior to prohibition, provided that such beverages were only for personal use in
one's own home. Not only did the failure to outlaw use render prohibition harder to
enforce by eliminating possession as defacto evidence of crime, but also it allowed the
purchaser and consumer of alcoholic beverages to defend his own behavior. Although the
distinction was obviously artificial, the consumer could and did insist that there was
nothing illegal about his drinking, while at the same time complaining that the failure of
government efforts to suppress bootlegging represented a breakdown of law and order.

Adopting the extreme prohibitionist view that any
alcohol whatsoever was intoxicating, the Volstead Act outlawed all beverages with an
alcoholic content of .5 percent or more. The .5 percent limitation followed a traditional
standard used to distinguish between alcoholic and nonalcoholic beverages for purposes of
taxation, but that standard was considered by many to be unrealistic in terms of the
amount of alcohol needed to produce intoxication. War-time prohibition, after all, only
banned beer with an alcohol content of 2.75 percent or more. Many did not associate
intoxication with beer or wine at all but rather with distilled spirits. Nevertheless, the
only exception to the .5 percent standard granted by the Volstead Act, which had been
drafted by the Anti-Saloon League, involved cider and fruit juices; these subjects of
natural fermentation were to be illegal only if declared by a jury to be intoxicating in
fact. The Volstead Act, furthermore, did permit the use of intoxicants for medicinal
purposes and religious sacraments; denatured industrial alcohol was exempted as well.

The Eighteenth Amendment specified that federal
and state governments would have concurrent power to enforce the ban on intoxicating
beverages. Therefore the system which evolved to implement prohibition had a dual nature.
Congress, anticipating general compliance with the liquor ban as well as cooperation from
state and local policing agencies in dealing with those violations which did occur,
created a modest enforcement program at first. Two million dollars was appropriated to
administer the law for its first five months of operation, followed by $4,750,000 for the
fiscal year beginning July 1, 1920. The Prohibition Bureau of the Treasury Department
recruited a force of only about fifteen hundred enforcement agents." Every state
except Maryland adopted its own antiliquor statute. Most state laws were modeled after the
Volstead Act, though some dated from the days of state prohibition and several imposed
stricter regulations or harsher penalties than did the federal statute. " State and
local police forces were expected to enforce these laws as part of their normal duties.
Critics at the time and later who claimed that no real effort was made to enforce national
prohibition because no large enforcement appropriations were forthcoming need to consider
the assumptions and police practices of the day." No general national police force,
only specialized customs and treasury units, existed. Furthermore, neither federal nor
state officials initially felt a need for a large special force to carry out this one
task. The creators of national prohibition anticipated only a modest increase in the task
facing law-enforcement officials.

Most Americans obeyed the national prohibition
law. Many, at least a third to two-fifths of the adult population if Gallup poll surveys
in the 1930s are any indication, " had not used alcohol previously and simply
continued to abstain. Others ceased to drink beer, wine, or spirits when to do so became
illegal. The precise degree of compliance with the law is difficult to determine because
violation levels cannot be accurately measured. The best index of the extent to which the
law was accepted comes from a somewhat indirect indicator.

Consumption of beer, wine, and spirits prior to
and following national prohibition was accurately reflected in the payment of federal
excise taxes on alcoholic beverages. The tax figures appear reliable because bootlegging
lacked sufficient profitability to be widespread when liquor was legally and conveniently
obtainable. The amount of drinking during prohibition can be inferred from consumption
rates once alcoholic beverages were again legalized. Drinking may have increased after
repeal; it almost certainly did not decline. During the period 1911 through 1915, the last
years before widespread state prohibition and the Webb-Kenyon Act began to significantly
inhibit the flow of legal liquor, the per capita consumption by Americans of drinking age
(15 years and older) amounted to 2.56 gallons of absolute alcohol. This was actually
imbibed as 2.09 gallons of distilled spirits (45 percent alcohol), 0. 79 gallons of wine 0
8 percent alcohol), and 29.53 gallons of beer (5 percent alcohol). In 1934, the year
immediately following repeal of prohibition, the per capita consumption measured 0.97
gallons of alcohol distributed as 0. 64 gallons of spirits, 0. 36 gallons of wine, and
13.58 gallons of beer (4. 5 percent alcohol after repeal). " Total alcohol
consumption, by this measure, fell by more than 60 percent because of national
prohibition. Granting a generous margin of error, it seems certain that the flow of liquor
in the United States was at least cut in half. It is difficult to know whether the same
number of drinkers each consumed less or, as seems more likely, fewer persons drank. The
crucial factor for this discussion is that national prohibition caused a substantial drop
in aggregate alcohol consumption. Though the figures began to rise almost immediately
after repeal, not until 1970 did the annual per capita consumption of absolute alcohol
reach the level of 1911-15. In other words, not only did Americans drink significantly
less as a result of national prohibition, but also the effect of the law in depressing
liquor usage apparently lingered for several decades after repeal.

Other evidence confirms this statistical picture
of sharply reduced liquor consumption under prohibition. After the Volstead Act had been
in force for a half dozen years, social worker Martha Bensley Bruere conducted a
nationwide survey of drinking for the National Federation of Settlements. Her admittedly
impressionistic study, based upon 193 reports from social workers across the country,
focused on lower-class, urban America. Social workers, who generally favored prohibition,
perhaps overrated the law's effectiveness. Nevertheless, Bruere's book provided probably
the most objective picture of prohibition in practice in the mid-1920s.

The Bruere survey reported that adherence to the
dry law varied from place to place. The Scandinavians of Minneapolis and St. Paul
continued to drink. On the other band, prohibition seemed effective in Sioux Falls, South
Dakota. In Butte, Montana, the use of intoxicants had declined, though bootleggers
actively plied their trade. Idaho, Oregon, and Washington had generally accepted
prohibition, and even in the West Coast wet bastion, San Francisco, working-class drinking
appeared much reduced. The Southwest from Texas to Los Angeles was reported to be quite
dry. The survey cited New Orleans as America's wettest city, with bootlegging and a
general disregard of the law evident everywhere. In the old South, prohibition was said to
be effectively enforced for Negroes but not whites. Throughout the Midwest, with some
exceptions, residents of rural areas generally observed prohibition, but city dwellers
appeared to ignore it. In the great metropolises of the North and East, with their large
ethnic communities-Chicago, Detroit, Cleveland, Pittsburgh, Boston, New York, and
Philadelphia-the evidence was overwhelming that the law was neither respected nor
observed."

Throughout the country, Bruere suggested, less
drinking was taking place than before prohibition. Significantly, she reported the more
prosperous upper and middle classes violated the alcoholic beverage ban far more
frequently than did the working class. Illicitly obtained liquor was expensive. Yale
economist Irving Fisher, himself an advocate of prohibition, claimed that in 1928 on the
average a quart of beer cost 80C (up 600 percent from 1916), gin $5.90 (up 520 percent),
and corn whiskey $3.95 (up 150 percent) while average annual income per family was about
$2,600. " If nothing else, the economics of prohibition substantially reduced
drinking by lower-class groups. Thus prohibition succeeded to a considerable degree in
restraining drinking by the very social groups with whom many advocates of the law had
been concerned. The Bruere study, therefore, offered cheer to drys. Yet her report also
demonstrated that acceptance of prohibition varied with ethnic background and local custom
as well as economics. Community opinion appeared more influential than federal or state
laws or police activity. People in many parts of the United States voluntarily obeyed the
Eighteenth Amendment, but elsewhere citizens chose to ignore it. In the latter part of the
decade, violations apparently increased, both in small towns and large cities. In Detroit
it reportedly became impossible to get a drink "unless you walked at least ten feet
and told the busy bartender what you wanted in a voice loud enough for him to hear you
above the uproar.""

Any evidence to the contrary notwithstanding,
national prohibition rapidly acquired an image, not as a law which significantly reduced
the use of alcoholic beverages, but rather as a law that was widely flouted. One Wisconsin
congressmen, writing to a constituent after a year of national prohibition, asserted,
"I believe that there is more bad whiskey consumed in the country today than there
was good whiskey before we had prohibition and of course we have made a vast number of
liars and law violators through the Volstead Act."" In part this commonly held
impression stemmed from the substantial amount of drinking which actually did continue.
Even given a 60 percent drop in total national alcohol consumption, a considerable amount
of imbibing still took place. Yet the image also derived in part from the unusually
visible character of those prohibition violations which did occur.

Drinking by its very nature attracted more notice
than many other forms of law-breaking. It was, in the first place, generally a social, or
group, activity. Moreover, most drinking took place, Bruere and others acknowledged, in
urban areas where practically any activity was more likely to be witnessed. Bootleggers
had to advertise their availability, albeit carefully, in order to attract customers. The
fact that the upper classes were doing much of the imbibing further heightened its
visibility. Several additional factors insured that many Americans would have a full,
perhaps even exaggerated, awareness of the extent to which the prohibition law was being
broken.

The behavior of those who sought to profit by
meeting the demand for alcoholic beverages created an indelible image of rampant
lawlessness. National prohibition provided a potentially very profitable opportunity for
persons willing to take certain risks. "Prohibition is a business," maintained
the best known and most successful bootlegger of all, Al Capone of Chicago. "All I do
is supply a public demand."" Obtaining a supply of a commodity, transporting it
to a marketplace, and selling it for an appropriate price were commonplace commercial
activities; carrying out these functions in the face of government opposition and without
the protections of facilities, goods, and transactions normally provided by government
made bootlegging an unusual business. Indeed bootleggers faced the problem--or the
opportunity -that hijacking a competitor's shipment of liquor often presented the easiest
and certainly the cheapest way of obtaining a supply of goods, and the victim of such a
theft had no recourse to regular law enforcement agencies. Nor, for better or worse, could
bootleggers expect government to restrain monopolistic practices, regulate prices, or
otherwise monitor business practices. Consequently, participants in the prohibition-era
liquor business had to develop their own techniques for dealing with competition and the
pressures of the marketplace. The bootlegging wars and gangland killings, so vividly
reported in the nation's press, represented, on one level, a response to a business
problem.

Certain activities beyond the pale of the law, but
for which there existed a substantial consumer demand-gambling, prostitution, and
narcotics in particular-had been organized in a businesslike fashion well before the
1920s. Those involved in these fields were reluctant to risk their positions in new
ventures. Those who became important bootleggers tended to be persons who had obtained
some low-level experience in such criminal businesses and aspired to advance. Bootleggers
tended to be young men from recent immigrant groups, Italians, Poles, and Jews especially,
who were looking for economic opportunity and found traditional routes, legal or criminal,
blocked by established entrepreneurs. Of 58 leaders of bootlegging organizations in ten
major cities in 1931, after eleven years of prohibition, two thirds (39) were still under
forty years of age, and several were still in their twenties. Al Capone was only
thirty-two when he went to prison for income tax evasion in 1931. Many of these aggressive
young men had belonged to youth gangs in New York or elsewhere. They were willing to
engage in any profitable activity and to defend their interests by violent means if
necessary. National prohibition offered them an unparalleled opportunity."

Violence was commonplace in establishing exclusive
sales territories, in obtaining liquor, or in defending a supply. In Chicago, for
instance, rival gangs competed intensely. Between September 1923 and October 1926, the
peak period of struggle for control of the large Chicago market, an estimated 215
criminals died at the hands of rivals. In comparison, police killed 160 gangsters during
the same period. Although by conventional business standards the violence level in
bootlegging remained high, it declined over the course of the 1920s. Consolidation,
agreement on markets, regularizing of supply and delivery all served to reduce turbulence.
John Torrio and Al Capone in Chicago, Charles Solomon in Boston, Max Hoff in Philadelphia,
the Purple Gang in Detroit, the Mayfield Road Mob in Cleveland, and Joseph Roma in Denver
imposed some order on the bootlegging business in their cities. The more than a thousand
gangland murders in New York during prohibition reflect the inability of Arnold Rothstein,
Lucky Luciano, Dutch Schultz, Frank Costello, or any other criminal leader to gain control
and put an end to (literally) cut-throat competition in the largest market of all."

The nation's press drew a vivid picture of a
disregarded law. Newspapers constantly carried reports of police raids on stills and
speakeasies. Such stories, along with reports of the many gangland killings in New York,
Chicago, and elsewhere, of course represented legitimate news, but their impact far
outweighed the statistical evidence of reduced drinking nationwide. The exploits of
prohibition enforcement agents, particularly a few colorful figures in the early years of
prohibition, received considerable press attention. New York City's Izzy Einstein and Moe
Smith proved masters of disguise, which allowed them to infiltrate speakeasy after
speakeasy to obtain evidence and make arrests. Their imaginative and colorful tactics (for
example, dressing as wagon drivers to gain entry to working class bars or appearing in
outlandish garb representing their idea of Texas ranchers in order to claim to be
out-of-towners looking for a place to get a drink) contributed to their success and made
them good news copy as well. Izzy and Moe's efforts were so widely reported that they were
forced to keep changing their ploys, and by 192S they were compelled to retire."

Magazines such as Literary Digest, The New Yorker,
and H. L. Mencken's American Mercury frequently referred to drinking by the Eastern upper
classes and, by assuming that what could be observed of one class in one region was
equally true for all social strata throughout the country, exaggerated the overall level
of prohibition violation. Mencken, whom Walter Lippman called "the most powerful
influence on this whole generation of educated people,"" in particular pictured
prohibition as a futile attempt to prevent drinking. Prohibition provided a central
example for his endlessly repeated argument that a puritanical and hypocritical rural
Protestant "boobus Americanus" was seeking to block the development of
sophisticated, cosmopolitan society in the United States. Prohibitionists were attempting,
as Mencken put it, "to punish the other fellow for having a better time in the
world.""

Motion pictures, already popular by the start of
the 1920s, became even more so after "talkies" began to appear in 1927. By 1930
an average of ninety million tickets a week were being sold to a population of 123 million
Americans." Films helped shape perceptions of what was taking place in American
society beyond the individual's immediate experience, contributing among other things to
the impression of widespread prohibition violation. Although few films in the early
twenties dealt with drinking or bootlegging, by mid-decade moviegoers were being subjected
to a wave of films on uninhibited, youthful, jazz-age "flapper" society.
"No such picture would be considered properly finished," commented a New York
Times film reviewer, "without a number of scenes depicting the shaking up and
drinking down of cocktails and their resulting effect on those who partake of
them."" A content analysis of 115 films, a representative sample for 1930, found
liquor referred to in 78 percent and drinking depicted in 66 percent. A further
examination of 40 of these same films revealed that while only 13 percent showed male
villains drinking and 8 percent female villains doing likewise, in 43 percent the heroes
drank and in 23 percent the heroines used intoxicants. "

A spate of gangster films, most set in New York or
Chicago, overtook more old-fashioned murder mysteries by the early 1930s. Bootlegging
provided the background for The Doorway to Hell, The Widow from Chicago, Little Caesar,
City Streets, Public Enemy, The Secret Six, Enemies of the Law, Scarface: Shame of a
Nation, and other pictures. In such films, criminal figures invariably came to a bad
end-indeed the Motion Picture Producers and Distributors of America practically demanded
it-but some nevertheless portrayed bootleggers as honorable, even noble characters.
Alcohol became the engine of personal ruin in social melodramas from Prodigal Daughters
(1923) and Wine of Youth (1924) to Young Man of Manhattan (1930) and Are These Our
Children (1931). Despite the overt message of moral condemnation in cinematic treatments
of liquor, films conveyed an image of a society which frequently used alcohol and
patronized bootleggers."

Ironically, the federal government in its efforts
to enforce national prohibition often contributed to the image of a heavily violated law.
Six months after the Eighteenth Amendment took effect, for example, Jouett Shouse, an
Assistant Secretary of the Treasury whose duties included supervising prohibition
enforcement, announced that liquor smuggling had reached such proportions that it could no
longer be handled by the 6,000 agents of the Customs Bureau. Shouse estimated that 35,000
men would be required to guard the coasts and borders against the flood of liquor pouring
into the country. The Assistant Secretary attributed the problem to an unlimited market
for smuggled whiskey and the 1,000 percent profits which could be realized from its sale.
29

During the 1920 presidential campaign, Republican
nominee Warren G. Harding pledged to enforce the Volstead Act "as a fundamental
principle of the American conscience," implying that the Wilson administration had
neglected its duty." Despite his known fondness for drink, Harding attracted dry
support with such statements while his opponent, the avowedly wet James A. Cox,
floundered. Once inaugurated, President Harding tried to fulfill his campaign promise but
met with little success. He explained to his wet Senate friend, Walter Edge of New Jersey,
"Prohibition is a constitutional mandate and I hold it to be absolutely necessary to
give it a fair and thorough trial."" The president appointed the Anti-Saloon
League's candidate, Roy A. Haynes, as commissioner of prohibition and gave the corpulent,
eternally optimistic Haynes a generally free hand in selecting personnel to wage battle
against bootlegging. Harding began to receive considerable mail from across the country
complaining about the failure of the dry law. As reports of prohibition violations
increased, Harding became more and more disturbed. Never much of a believer in prohibition
himself, Harding had, nevertheless, been willing as a senator to let the country decide
whether it wanted the Eighteenth Amendment, and now as president he deplored the wholesale
breaking of the law. In early 1923, having gradually realized the importance of personal
example, Harding gave up his own clandestine drinking." In a speech in Denver just
prior to his death, Harding appealed vigorously for observance of prohibition in the
interest of preventing lawlessness, corruption, and collapse of national moral fiber.
"Whatever satisfaction there may be in indulgence, whatever objection there is to the
so-called invasion of personal liberty," the president asserted, "neither counts
when the supremacy of law and the stability of our institutions are menaced.""
Harding's rhetoric, although intended to encourage compliance with prohibition, furthered
the image of a law breaking down.

A report by Attorney General Harry Daugherty to
President Calvin Coolidge shortly after Harding's death suggested the extent to which the
Volstead Act was being violated in its early years of operation. Daugherty indicated that
in the first forty-one months of national prohibition, the federal government had
initiated 90,330 prosecutions under the law. The number of cases had been rising: 5,636
were settled in April 1923, 541 more than in the initial six months of prohibition. The
number of new cases doubled between fiscal 1922 and fiscal 1923. The government obtained
convictions in 80 percent of the terminated cases. These figures showed, the attorney
general argued, that prohibition enforcement was becoming increasingly effective."
They could just as well be seen, however, as an indication of an enormous and increasing
number of violations.

The prohibition cases brought into federal court
most certainly represented only a small fraction of actual offenses. They nevertheless
seemed to be more than the court and prison system could handle. In 1920, 5,095 of the
34,230 cases terminated in the federal courts involved prohibition violation; during 1929,
75,298 prohibition cases alone were concluded. In 1920, federal prisons contained just
over 5,000 inmates; ten years later they contained over 12,000, more than 4,000 of whom
were serving time for liquor violations. The courts were so overworked that they
frequently resorted to the expedient of "bargain days." Under this system, on
set days large numbers of prohibition violators would plead guilty after being given prior
assurance that they would not receive jail sentences or heavy fines. By 1925, pleas of
guilty, without jury trials, accounted for over 90 percent of the convictions obtained in
federal courts. The legal system appeared overwhelmed by national prohibition. "

As president, Calvin Coolidge found prohibition
enforcement to be the same headache it had been for his predecessor. Like Harding,
Coolidge was constantly under pressure from Wayne Wheeler and other dry leaders to improve
enforcement. He received hundreds of letters deploring the rate of Volstead Act violations
and urging forceful action. Coolidge merely acknowledged receipt of letters on the
subject, avoiding any substantial response." As it did with many other issues, the
Coolidge administration sought to avoid the prohibition question as much as possible.
Other than seeking Canadian and British cooperation in halting smuggling, and holding
White House breakfasts for prestigious drys, few federal initiatives were taken while
Coolidge remained in office." The picture of rampant prohibition violation stood
unchallenged.

Congress, once having adopted the Volstead Act and
appropriated funds for its enforcement, assumed its job was done and avoided all mention
of prohibition during the law's first year of operation. Evidence of violations, however,
quickly provoked dry demands that Congress strengthen the prohibition law. Whenever
Congress acted, it drew attention to the difficulties of abolishing liquor. When it failed
to respond, as was more frequently the case, drys charged it with indifference to law
breaking. Whatever it did, Congress proved unable to significantly alter prohibition's
image.

After Harding's inauguration, Congress learned
that retiring Attorney General A. Mitchell Palmer had ruled that the Volstead Act placed
no limit on the authority of physicians to prescribe beer and wine for medicinal
purposes." Senator Frank B. Willis of Ohio and Representative Robert S. Campbell of
Kansas moved quickly to correct this oversight by introducing a bill that would forbid the
prescription of beer and rigidly limit physicians' authority to prescribe wine and
spirits. Only one pint of liquor would be permitted to be dispensed for a patient during
any ten-day period, under their plan. Well-prepared dry spokesmen completely dominated the
hearings on the Willis-Campbell bill, insisting that this substantial source of
intoxicants be eliminated. Physicians and pharmacists protested that beer possessed
therapeutic value and that Congress had no right to restrict doctors in their practice of
medicine. Nevertheless, in the summer of 1921 the bill passed the House by a vote of 250
to 93, and the Senate by 39 to 20." The Willis Campbell Act reflected congressional
determination to shut off the liquor supply, but like the Volstead Act, it did not resolve
the problem of imposing abstinence on those willing to ignore the law in order to have a
drink.

For years, Congress continued to wrestle with the
problem of creating and staffing an effective federal enforcement organization. The
Volstead Act delegated responsibility for implementing national prohibition to an agency
of the Bureau of Internal Revenue in the Department of the Treasury. The act exempted
enforcement agents from civil service regulations, making them political appointees. The
Anti-Saloon League, through its general counsel, Wayne B. Wheeler, relentlessly pressed
Harding and Coolidge to name its candidates to positions in the enforcement agency. The
prohibition unit, beset by patronage demands and inadequate salaries, attracted a low
caliber of appointee and a high rate of corruption. By 1926 one out of twelve agents had
been dismissed for such offenses as bribery, extortion, solicitation of money, conspiracy
to violate the law, embezzlement, and submission of false reports. A senator who supported
prohibition argued lamely that this record was no worse than that of the twelve apostles,
but he could not disguise the enforcement unit's very tarnished reputation."

Even if the agency had been staffed with personnel
of better quality, its task would have been overwhelming. It received little cooperation
from the Department of Justice, with which it shared responsibility for prosecuting
violators. Furthermore, the prohibition unit lacked both the manpower and the money to
deal with the thousands of miles of unpatrolled coastline, the millions of lawbreaking
citizens, and the uncountable hordes of liquor suppliers. The agency focused its efforts
on raiding speakeasies and apprehending bootleggers, but this task alone proved beyond its
capacity and discouraged a series of prohibition commissioners.

Congress steadily increased enforcement
appropriations but never enough to accomplish the goal." In 1927 prohibition agents
were finally placed under civil service, and in 1930 the Prohibition Bureau was at last
transferred to the Justice Department." As useful as these congressional steps may
have been, they came long after the enforcement effort had acquired a dismal reputation
and doubts as to whether prohibition could possibly be effective had become deeply
ingrained.

Early in 1929 Congress made a determined effort to
compel greater adherence to national prohibition. A bill introduced by Washington senator
Wesley L. Jones drastically increased penalties for violation of the liquor ban. Maximum
prison terms for first offenders were raised from six months to five years, and fines were
raised from $1,000 to $10,000.41 The Jones "Five-and-Ten" Bill, as it was
called, passed by lopsided majorities in Congress and signed into law by Coolidge days
before he left office, did not improve prohibition's effectiveness but strengthened its
reputation as a harsh and unreasonable statute.

During the 1920s the Supreme Court did more than
either the Congress or the president to define the manner in which national prohibition
would be enforced and thereby to sharpen the law's image. As a Yale law professor, and
earlier as president, William Howard Taft had opposed a prohibition amendment because he
preferred local option, disliked any changes in the Constitution, and felt national
prohibition would be unenforceable . 44 But when the Eighteenth Amendment was ratified,
Taft, a constant defender of the sanctity of democratically adopted law, accepted it
completely and even became an advocate of temperance by law. He condemned critics of
national prohibition, saying, "There isn't the slightest chance that the
constitutional amendment will be repealed. You know that and I know it."" As
chief justice from 1921 until 1930, he sought to have the prohibition laws strictly
enforced and took upon himself the writing of prohibition decisions .41 The opinions
handed down by the Taft Court during the 1920s greatly influenced conceptions of the
larger implications of the new law as well as the actual course of prohibition
enforcement.

In 1922 the Supreme Court heard the case of Vito
Lanza, who had been fined for manufacturing and transporting liquor in violation of a
Washington state prohibition law and who was now being prosecuted for the same act under
the federal statute. Lanza's attorneys argued that such a prosecution violated the Fifth
Amendment guarantee against double jeopardy. The Court held that while the Eighteenth
Amendment established prohibition as a national policy, the "concurrent power to
enforce" clause gave each state the right to exercise an independent judgment in
adopting measures to enforce prohibition as long as such laws did not contradict the
federal statutes. The rights of states did not derive from the Eighteenth Amendment, but
from powers originally belonging to them; the concurrent power provision merely insured
that this power would not be denied. The state and the federal government each possessed
an independent authority to punish prohibition violations as offenses against its peace
and dignity, Chief Justice Taft explained. The Fifth Amendment only barred repeated
proceedings by the federal government and did not apply to a situation of this sort.
Therefore the Court unanimously upheld the second prosecution of Vito Lanza." Since
nearly every state in the union either had a state prohibition law prior to the adoption
of the Eighteenth Amendment or had passed one immediately after ratification, the Lanza
decision meant that prohibition violators could be indicted and punished twice for almost
every offense.

Next the court sought to strike a blow at
bootlegging. In December 1921, federal prohibition agents patrolling the highway between
Detroit and Grand Rapids, Michigan, stopped an automobile driven by George Carroll and
John Kiro. Two months earlier the agents had arranged to buy whiskey from Carroll and
Kiro, but the two suspected bootleggers had failed to reappear with the liquor. When they
recognized the car, the agents admittedly had no evidence that it carried liquor; indeed,
they had not anticipated seeing Carroll and Kiro. The agents nevertheless proceeded,
without a warrant, to search the car. They found sixty-eight bottles of whiskey and gin
concealed behind the upholstery. When Carroll and Kiro were convicted, their attorneys
appealed, claiming that the evidence used against them had been seized in violation of the
search and seizure provision of the Fourth Amendment. The Supreme Court noted that the
Fourth Amendment prohibited only "unreasonable" searches and seizures and held
that this case did not involve such an unreasonable act. Speaking for the Court, Taft
explained that, since a vehicle could depart before a warrant could be obtained, in order
to protect the public interest, officers having reasonable cause could legally search an
automobile without a warrant. The defense protested that the officers lacked sufficient
grounds for conducting a search since the car did not appear to be carrying liquor and
since the agents had never actually purchased liquor from the defendants. The Court,
however, held the officers' suspicions reasonable and the obtaining of a search warrant
impracticable. By a vote of seven to two, the justices upheld the conviction." The
Carroll decision of March 2, 1925, greatly expanded the search and seizure powers of
prohibition enforcement agents and indeed of all police dealing with automobiles.

Objections by the medical profession to the
restrictions of the prohibition laws increased with the 1921 passage of the
Willis-Campbell Act. Physicians continued to claim that the Eighteenth Amendment did not
permit Congress to interfere with the practice of medicine. In June 1924, however, the
Supreme Court unanimously upheld the right of Congress to proscribe the medicinal use of
beer." Even more significant was the Court's response to a suit brought by a group of
prominent New York physicians led by the Dean Emeritus of the College of Physicians and
Surgeons of Columbia University, Dr. Samuel W. Lambert. In 1923 Dr. Lambert obtained a
District Court injunction forbidding the local prohibition director from interfering with
his prescription of wines and spirits. He claimed that the Willis-Campbell Act's
prescription limitation of one pint in ten days for any patient was arbitrary and
interfered with his constitutional rights as a physician to treat his patients according
to his judgment and training. In 1926 the Supreme Court, by a five to four vote, ruled the
power to limit medicinal use of liquor a legitimate part of the power to enforce the
prohibition against the beverage use of alcohol. In the Court's view, the
one-pint-in-ten-days limitation was not arbitrary; it reflected the opinions of many
physicians as to the marginal value of liquor as medicine. Furthermore, the Court held the
right to practice medicine to be subordinate always to the police power of the state.
Dissenting justices asserted that the Eighteenth Amendment placed a prohibition only on
beverage alcohol and could not properly be applied to medicinal liquor, but they were
outvoted.10 The Lambert case represented an almost even division of opinion within the
Court, but as did earlier decisions, it strengthened the government's hand in enforcing
prohibition.

The last major Supreme Court decision concerning
prohibition enforcement became in many ways the most controversial and significant. It
grew out of a 1925 case in the state of Washington where Roy Olmstead, a major smuggler of
Canadian liquor, and seventy-four other persons were convicted on the basis of evidence
obtained by tapping their telephones. The wiretaps had been made without trespassing upon
any property of the defendants. However, a state statute made wiretapping a misdemeanor.
In appealing the case to the Supreme Court, the defense argued that the evidence had been
criminally obtained and that telephone tapping violated the rights granted by the Fourth
and Fifth Amendments against unreasonable search and seizure and self-incrimination."
Led by Chief Justice Taft, who had no sympathy for lawbreakers and whose crusade for
stricter enforcement of prohibition reached its zenith in this case, a majority of the
Court disagreed. Taft declared that, since no trespass was involved and since no material
things were searched or seized, the Fourth Amendment had not been infringed. Nor had the
Fifth Amendment guarantee against self-incrimination, since the defendants had not been
compelled to talk over the telephone but had done so voluntarily. Finally, under the
common law, the admissibility of evidence was not affected by the fact it had been
illegally obtained."

Justices Holmes, Brandeis, Stone, and Butler
vigorously dissented from the Olmstead decision. Brandeis argued that wiretapping,
although dressed in the garb of new technology, remained illegal search and seizure. Any
unjustified intrusion by the government upon the privacy of the individual, by whatever
means, violated the right of privacy guaranteed by the Fourth Amendment. Holmes and
Brandeis both protested the use of evidence obtained by a criminal act. Holmes stressed
that the government should not foster crime as the means to obtain evidence regarding
other crimes. Brandeis declared that the government must observe the same rules as the
citizen if it expected to command respect. In one of his most ringing and oft-quoted
dissents, Brandeis concluded,

In a government of law, existence of the
government will be imperilled if it fails to observe the law scrupulously. Our Government
is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people
by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a law unto himself; it invites anarchy.
"

Despite the dissenters' warnings, a majority
of the Court upheld the use of wiretapping. The opinions of Holmes and Brandeis upset
Taft, who saw automobiles and telephones as new and powerful weapons in the hands of
criminals. The Chief Justice felt that to adopt the position taken by Holmes and Brandeis
would be to facilitate crime and furnish immunity from conviction. The Court, in Taft's
opinion, must support the efforts of lawenforcement officials in combating criminal
activity."

Throughout the 1920s the Supreme Court clearly
followed Taft's line of thought. The Court's opinions substantially strengthened the
machinery for enforcing law and order and upholding the Eighteenth Amendment. When
implementation of the new amendment conflicted with the apparent restraints of older ones,
a majority of the justices preferred to see the recent addition well launched. Court
decisions and dissents made those who paid attention aware that prohibition would have
far-reaching ramifications on legal rights. The image of a government prepared to engage
in more aggressive and intrusive policing practices than ever before in order to enforce a
particular law was being created by Lanza, Carroll, Lambert, and Olmstead at the same time
that the impression was being generated of widespread disregard for that law.

While in reality national prohibition sharply
reduced the consumption of alcohol in the United States, the law fell considerably short
of expectations. It neither eliminated drinking nor produced a sense that such a goal was
within reach. So long as the purchaser of liquor, the supposed victim of a prohibition
violation, participated in the illegal act rather than complained about it, the normal law
enforcement process simply did not function. As a result, policing agencies bore a much
heavier burden. The various images of lawbreaking, from contacts with the local bootlegger
to Hollywood films to overloaded court dockets, generated a widespread belief that
violations were taking place with unacceptable frequency. Furthermore, attempts at
enforcing the law created an impression that government, unable to cope with lawbreakers
by using traditional policing methods, was assuming new powers in order to accomplish its
task. The picture of national prohibition which emerged over the course of the 1920s
disenchanted many Americans and moved some to an active effort to bring an end to the dry
law.